Here in Cuba there were extensive activities marking the first
anniversary of the decision of the three-judge panel in Atlanta
overturning the Cuban Five convictions, and demanding a release
of the five men. Evidently, a decision has now been made in the
case, an unfavorable decision. This is the first report we've
received, thanks to attorney Jose Pertierra in Washington, DC.
I tried unsuccessfully to open the website of the newspaper
from which this came. Complete 120-page pdf of court decision:
http://www.walterlippmann.com/cuban-five-08-09-2006.pdf
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LEDGER-ENQUIRER (Colombus, GA)
Posted on Wed, Aug. 09, 2006
Appeals court rejects new trial request for Cuban agents
Associated Press
ATLANTA - Five men convicted in Miami for being unregistered Cuban
intelligence agents are not entitled to a new trial, a federal
appeals court ruled Wednesday.
The five argued on appeal that pervasive community prejudice against
the Cuban government and publicity surrounding the case prevented
them from receiving a fair trial.
A three-judge panel of the 11th Circuit threw out all the convictions
last August, ruling that pretrial publicity combined with pervasive
anti-Castro feeling in Miami didn't allow for a fair trial. The
government asked the full appeals court to reconsider.
The entire 11th U.S. Circuit Court of Appeals, with two judges
dissenting, affirmed the U.S. District Court's denial of a request
for a change of venue and a new trial. It sent the case back to the
three-judge appeals panel for consideration of remaining issues.
Attorneys for the defendants argued that at the time of the trial,
the community was focused on the case of Elian Gonzalez.
The five men, arrested in 1998, have acknowledged being Cuban agents,
but said they were spying not on the United States but on U.S.-based
exile groups planning terrorist actions against the Castro
government.
The five were convicted in 2001. Elian Gonzalez, a 5-year-old boy,
was found clinging to an inner tube in November 1999 after a boat
carrying would-be migrants capsized in a storm. His mother died, and
after a court battle waged by his anti-Castro relatives in Miami,
Elian was handed over to his Cuban father by the U.S. government in
2000.
Assistant U.S. Attorney David Buckner insisted during oral arguments
earlier this year that the trial was fair because the court took
"vigorous and ultimately successful steps" to select and isolate
jurors - none of whom was of Cuban ancestry.
The appeals court agreed. "Nothing in the trial record suggests that
12 fair and impartial jurors could not be assembled by the trial
judge to try the defendants impartially and fairly," Judge Charles R.
Wilson wrote for the majority.
Judge Stanley F. Birch Jr. wrote in dissent that "this case is one of
those rare, exceptional cases that warrants a change of venue because
of pervasive commmunity prejudice making it impossible to empanel an
unbiased jury."
The defendants are Ruben Campa, Rene Gonzalez, Gerardo Hernandez,
Luis Medina and Antonio Guerrero. They remain in prison.
Three of them, who also were convicted of espionage conspiracy for
efforts to penetrate U.S. military bases, were sentenced to life in
prison. Hernandez was also convicted of murder conspiracy in the
deaths of four Miami-based pilots whose planes were shot down by
Cuban jets in 1996 off the island's coast.
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